When George W. Bush and John McCain went before the TV cameras last month to say that they'd worked out a deal on the torture ban McCain had proposed and the White House had long resisted, Bush said that, together, they had "made it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad."
But as the Boston Globe reports this morning, the president seems to have undone that rather unequivocal stand when he signed the McCain measure into law late last week. In his signing statement, Bush said that he shall "construe" the ban "in a manner consistent with the constitutional authority of the president ... as commander in chief." That's the same "constitutional authority," you may recall, that the White House has cited in justifying Bush's decision to authorize warrantless spying on American citizens in violation of the Foreign Intelligence Surveillance Act.
A senior administration official tells the Globe that the White House considers itself bound by the torture ban but that a situation could arise in which Bush might decide to disregard it in the interests of national security. It's an exception that swallows the rule, of course: Unless U.S. personnel are mistreating detainees solely for sport, isn't there always a "national security" justification that could be offered for torturing someone believed to be connected to terrorist activites?
"The whole point of the McCain Amendment was to close every loophole," Marty Lederman, a Georgetown University law professor and former Justice Department lawyer, tells the Globe. "The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism." NYU law professor David Golove puts its more bluntly: "The signing statement is saying, 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.'"
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